Marshfield City Employees, Local 929, AFSCME, AFL-CIO, herein the Union,
pursuant to the terms of its collective bargaining agreement with the City of
Marshfield, herein the Employer, requested the Wisconsin Employment Relations
Commission to designate a member of its staff as an arbitrator to hear and decide
a dispute between the parties. The Employer concurred with said request and the
undersigned was designated as the arbitrator. Hearing was held in Marshfield,
Wisconsin on June 12, 1989. No transcript of the hearing was taken. The parties
completed the filing of post-hearing briefs on July 18, 1989.

ISSUE

the parties stipulated to the following issues:

Did the Employer violate the collective bargaining agreement
when it refused
to allow the workers formerly assigned to the Transfer Station to exercise
bumping rights when their Transfer Station work was eliminated? If so, what is
the appropriate remedy?

BACKGROUND

The Employer had operated a Transfer Station at which hard refuse was
compacted and then transported to another location for disposal. Prior to 1984
the refuse was transported to Black River Falls for disposal. Because of the
amount of refuse and the distance involved (120 miles round trip), two drivers
were employed. In 1984 the Employer began sending the refuse to Wisconsin
Rapids. As a result of the reduced transport distance (60 miles round trip), the
Employer discontinued one Transport Station driver position. The affected
employe was allowed to bump a less senior employe, which caused a series of bumps
to take place thereafter. No employes were laid off due to open positions at the
time.

In 1989 the Employer decided to subcontract the entire Transfer Station
operation to a private firm, which action eliminated two positions, i.e., the
operator position held by Robert Tauschek and the driver position held by Leonard
Cordes. Tauschek and Cordes were transferred to the Employer's Street Department
and assigned duties therein at the same wage rates as they had been receiving in
their Transfer Station positions. Tauschek and Cordes were not given the option
of bumping less senior employes when they were transferred to the Street
Department. The transfers did not cause the layoff of any employes because
several positions became available through attrition.

Subsequent to the transfer of Tauschek and Cordes to the Street Department,
five positions in that Department, with higher wage rates than they were
receiving, have been posted for employe bids. Neither Tauschek nor Cordes
applied for any of those positions. All five positions were filled by employes
with less seniority than Tauschek or Cordes.

RELEVANT CONTRACT PROVISIONS

Article 3 - Seniority - Job
Listings

. . .

Section 3. All vacancies or newly created positions
in job classifications
shall be posted by the City on the union bulletin board located near the time
clock for a period of five (5) consecutive working days overlapping two (2) weeks
(exception to five (5) consecutive working days shall be a posting which is
posted on a Monday morning shall not be removed until the end of the workday of
the following Monday). All vacancies shall be posted within ten (10) workings
days after being vacated by the incumbent. The posted notice shall contain ample
space for interested employees to attach their names thereto. The employee with
the most seniority, who can qualify, shall be assigned to the position. The
Union shall be provided with a photocopy of the posting immediately following the
removal of the posting from the board. The City shall advise the Union in
writing in the event it deletes a position from the table or organization
covering the bargaining unit.

. . .

Section 6. When an employee is laid off due to a
shortage of work, lack of
funds, or the discontinuance of a position, such employee may take any other
position for which he/she may qualify and that his/her seniority will permit the
employee to hold.

. . .

Article 14 - Grievance
Procedure

. . .

Section 5. The arbitrator shall have no authority or
power to add to,
modify, or delete from the express terms of this agreement.

. . .

Article 20 - Management
Rights

Contracting and Subcontracting.

. . .

(B) The Union recognizes that the City has statutory and
charter rights
and obligations in con-tracting for matters relating to municipal operations.
The right to contract or subcontract shall not be used for the purpose or
intention of undermining the Union nor to discriminate against any of its
members. The City further agrees that it will not layoff (sic) any employees who
have completed their probationary periods at the time of the execution of this
agreement, because of the exercise of its contracting or subcontracting rights
except in the event of an emergency, strike or work stoppage or essential public
need where it is un-economical for city employees to perform said work; provided,
however, that the economies will not be based upon the wage rates of the
employees of the contractor or subcontractor, and provided it shall not be
considered a layoff if the employee is transferred or given other duties at the
same pay. Any unreasonable exercise of the management's rights by the City as
set out in this paragraph may be appealed by the Union through the grievance
procedure.

Position of the Union

Article 3, Section 6, clearly provides that where a position is eliminated,
the incumbent has bumping rights. The positions held by Tauschek and Cordes were
eliminated and they should have been given the right to bump less senior
employes. Such a right to bump is supported by the fact that in 1984 a transfer
station driver position was eliminated and the incumbent was allowed to bump.
At the end of the bumping process no employes were laid off. Neither did any
layoffs result from the transfer of Tauschek and Cordes.

If the Employer is allowed to assign whatever duties it wishes to an
employe whose position is eliminated simply because the employe is losing no
income, then the meaning of seniority will be greatly diminished and the job
posting procedure could be totally undermined.

Position of the Employer

The provisions of the agreement must be read as a whole. Since
Article 20(B) expressly addresses the loss of an employe position due to
subcontracting, whereas Article 3, Section 6 does not, then Article 20(B)
is more
specific and governs in this matter. Because the language of Article 20(B) is
clear and unambiguous, then it must be given effect. Pursuant to said language,
an employe who is transferred, due to subcontracting, to another position with
different duties at the same rate of pay has not been laid off. That is exactly
what occurred in this case. Since the employes were not laid off, then
Article 3, Section 6 is inapplicable.

The 1984 incident fails to support the Union's position. The 1984 incident
did not involve a subcontracting situation. A position was eliminated because
of a change in operations, rather than a subcontracting of the operations. Thus,
under Article 3, Section 6, the incumbent was laid off and allowed to bump less
senior employes. Said situation is different from the instant case wherein the
employes were transferred due to the subcontracting of the entire Transfer
Station operation.

DISCUSSION

The facts in this case are relatively brief and are not in dispute. When
the Employer subcontracted its refuse Transfer Operation, the positions held by
Tauschek and Cordes were eliminated and they were transferred to positions in the
Employer's Street Department at the same wage rates as they had been receiving
at the Transfer Station. They were not allowed to bump less senior employes when
they were transferred.

The dispute is over which contract provision covers this situation. As
argued by the Union, Section 6 of Article 3 provides that an employe, who is
laid
off due to, interalia, the discontinuance of a position, can bump
less senior
employes. That right is not limited to any specific reasons for the
discontinuance of a position. Thus, the language of Section 6, Article 3 is
found to be of a general nature since it is not limited to specific situations.
Standing alone, said language would appear to cover the instant matter. However,
the language of Paragraph B in Article 20 clearly provides that a
nonprobationary
employe will not be laid off as a result of any subcontract of an operation by
the Employer, except in certain situations, and, further, that an employe who is
transferred or given other duties at the same pay is not considered to have been
laid off. Said language is directly on point in relation to the instant case.
That language deals with the specific topic of positions eliminated by the
subcontract of an operation, which is what occurred herein. Accordingly, the
specific language of Paragraph B in Article 20 takes precedence over the general
language of Section 6 in Article 3. Further, Paragraph B,
Article 20 expressly
states that the transfer of an employe at the same rate of pay due to a
subcontract of an operation shall not be considered a layoff. Therefore,
Section 6, Article 3 cannot be applied to the instant case because that language
applies only to layoffs, which, under Paragraph B of Article 20, the instant case
is not.

The contractual language unequivocally supports the actions of the Employer
in this case. Neither is the Union's position supported by the 1984 incident in
which an employe was allowed to bump when his position was eliminated. In 1984
a position was eliminated because of a change in the Transfer Station operation.
There was no subcontract involved. Consequently, the affected employe was laid
off and properly was allowed to bump less senior employes in accordance with
Article 3, Section 6. Since no subcontract was involved, Paragraph B of
Article 20 did not apply. Thus, the 1984 incident is distinguishable from the
instant matter and has no relevance as a precedent.

The Union's contention that, if the grievance is not sustained then the
seniority and job posting provision will be undermined, is not persuasive. The
Employer's ability to transfer employes to other duties at the same pay is
limited only to situations where an employe's position is eliminated by
contracting or subcontracting and does not extend to situations when positions
are eliminated for other reasons. Moreover, it is clear that the Employer's
actions in this case did not undermine the job posting procedure, since five
positions in the Street Department were posted after Tauschek and Cordes were
transferred. Each of the five positions carried a higher wage rate than either
Tauschek or Cordes was receiving. Neither employe chose to bid on any of the
postings, all of which were awarded to less senior employes.

Based on the foregoing and the record as a whole, the undersigned enters
the following

AWARD

That the Employer did not violate the collective bargaining agreement when
it refused to allow Robert Tauschek and Leonard Cordes, the workers formerly
assigned to the Transfer Station, to exercise bumping rights when their Transfer
Station work was eliminated; and, that the grievance is denied and dismissed.